Olayemi & Ors V. Fha (2022)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C.

This appeal is against the Judgment of the Court of Appeal, holden at Lagos, delivered on the 12th of July, 2017 wherein the Court below allowed in part, the appeal lodged by the Respondent, against the judgment of the trial Federal High Court, Lagos Judicial Division.

The facts leading to the appeal reveal that by a Writ of Summons, and Statement of Claim, dated 7th September 2012, the Appellants, as Plaintiffs approached the trial Court, seeking essentially declaratory reliefs with respect to the administrative actions and decisions of the Respondent, as an agency of the Federal Government, which actions were inimical to the interest of the Appellant. The Appellants claimed against the Respondent, as follows:

1. A Declaration that the exercise of the Defendant’s power in putting the Plaintiffs’ lands into parcels and plots and attempting to sell them without the land having been first acquired by the acquiring authorities and vested same in the Defendant as required by law, is ultra vires her powers and therefore illegal, null and void and of no effect whatsoever.
2. The purported advertisement in the Nigeria Newspapers and particularly on the Guardian Newspaper of Monday April 2nd, 2012 and This day Newspaper of Monday January 31st, 2011, saying that the land belongs to the Defendant and calling for contractors, consultants for the purpose of mobilizing into the Plaintiffs’ and, without same having been first acquired by the acquiring authorities and vested same in the Defendant, is ultra vires her powers and therefore illegal, null and void, and of no effect whatsoever.
3. That the Defendant is vested only with the land shown in survey plan No. LS/D/BG/63, being the only land acquired by the acquiring authorities and vested same in the Defendant, thereby excluding the Plaintiffs’ land as contained in Survey Plan Number KESH/L/1106 and dated 4th October, 1980, less by 4.107 hectare as declared by the Honourable Minister, Ministry of Lands, Works, and Housing vide their letter to the Plaintiffs’ Reference No. LA/LA/LA/447/Vol. 1/3 dated December 15th, 2010.

​The Appellants, who sued in a representative capacity, for themselves and on behalf of the entire members of Kuje Amuwo Land, Amuwo Odofin Local Government Area of Lagos, are contending that the Respondent had gone beyond the land acquired by the Government, for the construction of FESTAC Town.

​It is the Appellants story that sometime in 1975/76, the Federal Government of Nigeria acquired parcels of land in Amuwo Odofin Local Government Area of Lagos State for the Festival of Arts and Culture held in 1977. The said acquisition was first documented by the Federal Government in the Official Gazette No. 54, Volume 62 of 6th November 1975 and Official Gazette No. 45, Vol. 63 of 9th September 1976. The Official Gazettes were admitted in evidence as Exhibit B14. The said acquisition was also documented by the Lagos State Government in the Indenture Registered as No. 74 Page 74, Vol. 1878 of 11th May 19881 which was admitted in the trial Court as Exhibit D11. The Appellants admitted during the trial that they were duly informed of the acquisition of the land and were also adequately and promptly compensated. Under the Indenture of 11th May, 10-8B, the Federal Government was granted 2024.60 hectares of land covered by Survey No. LSD/BG/63, inclusive of the 544 Hectares in Official Gazette No. 54 and the5.940 Hectares in Official Gazette No. 45. The Survey Plan No. LSD/BG/63 was also relied on at the trial.

Sequel to the acquisition, the Appellants commissioned a Surveyor to survey the un-acquired portion of their land, which exercise resulted in Survey Plan No. KESH/L/1106. The Appellants stated that they observed that sometime in 2010, the Respondent went beyond the acquired land, and is now encroaching into the portion left for the Appellants. They stated that the Respondent put the Appellants’ family land into parcels and advertised same for sale. The Appellants stated that they took up the issue and lodged a formal complaint through a Human Rights Organization called the Forum the Promotion of Human Right and Justice (FORIGHTS) which Organization lodged a Petition vide a letter dated 13th October, 2010, with the Honourable Minister of Works and Housing which is the Parent Ministry of the Respondent, attaching to the said letter, the Appellants’ survey Plan No KESH/L/1106, and the Respondent’s survey Plan No. LSD/BG/63. The Petition lodged on behalf of the Appellants by FORIGHTS was duly investigated by the Honourable Minister of Lands, Housing and Urban Development vide an Internal Memo dated 3rd June, 2010 and the referred the Survey Plans of both parties to the Federal Unit for Charting. At the conclusion of the Charting exercise, the Appellants were informed by the Honourable Minister, via two letters (Exhibits B5 and B6) dated 19th October 2010 and 15th December, 2010 respectively, that the Appellants’ family land falls substantially outside the Government acquisitions less 0.79% that is, 4,107 Hectares, and they were enjoined by the said letters to deal freely with the un-acquired portions of their land. Notwithstanding the above, the Respondent proceeded, in excess of their powers, to put the Appellants’ family land into parcels and advertised same for sale to members of the public. This prompted the Appellants into approaching the trial Court seeking essentially to nullify the Respondent’s actions.

At the trial, the Respondent filed a Notice of Preliminary Objection by which the Respondent contended that the Trial Court lacked the jurisdiction to entertain the suit, on the basis that it is a land matter.

By its ruling, delivered on 1st November, 2013, the trial Court resolved the objection in favour of the Appellants, and held that it had the requisite jurisdiction to, try the case. In continuation of trial, some witnesses were called, one of whom is Mr. O.O. Onabanjo, (who was PW1 for the Appellants and a subpoenaed witness for the Respondent, as DW2). He gave evidence to the effect that although the two letters (Exhibits B5 and B6), stated that the Appellants’ land fell outside of the acquisition of the Federal Government, there is another Charting exercise, conducted by the Surveyor-General of the Federation, with Ref. No. HUD/LA/S5A,VOL.1/42, dated 14th February, 2011, (Exhibit D18), canceling out the earlier Charting Exercise of 11th October, 2010 and affirming that the Appellants’ land was found to fall within the acquisition by about 75%. Mr. O.O. Onabanjo (PW1/DW2) stated further that the Appellants were duly informed of Exhibit D18 and its findings vide a letter dated 5th April 2011, (Exhibit D19), which Mr. O.O. Onabanjo said he wrote himself and signed. The Appellants however contended that Exhibit D19 was not delivered to them.

​After plenary trial in the suit, parties duly filed and exchanged final written addresses. In its written address, the Respondent again raised the issue of the trial Court’s jurisdiction to entertain the Appellants’ Suit. The Trial Court in its judgment held that having earlier determined that it had substantive jurisdiction to hear the suit, it would amount to sitting on appeal against its own judgment if it proceeds to determine same a second time. Based on the joinder of issues on the pleadings filed and exchanged by the parties, as well as the oral and documentary evidence adduced the trial Court entered judgment for the Appellants and granted all the reliefs they claimed.

The Respondent was dissatisfied with the judgment of the trial Court, and lodged an appeal at the Court below. In its judgment, the Court below held that the trial Court lacked the jurisdiction to try the case, and the case was struck out.

Aggrieved by this decision, the Appellants appealed to this Court and in their Amended Brief of Argument, the following three issues were raised for determination:

1. (a) Whether the lower Court was right when it failed to consider the main issue in controversy before it on the effect of the trial Court’s ruling of 1st November, 2013, on the objection of the Respondent to the Appellants’ suit and proceeded to determine the issue of substantive jurisdiction without any of appeal?

(b) If the answer to the foregoing is in the affirmative, whether the decision of the lower Court that the trial Court lacked the substantive jurisdiction to entertain the Appellants’ suit on the basis that the Appellants’ third relief in their principal claim is sustainable in law?

2. Whether the lower court was right to have made a consequential order striking out the Appellant suit?
3. Is the decision of the lower Court in dismissing the Appellants’ preliminary objection to grounds of the Respondent’s appeal, sustainable in law?

The Respondent also distilled three issues in its Respondent’s Brief of Argument. The Issues are:

1. Whether the lower Court’s decision to dismiss the Appellants’ preliminary objection was not right and perfectly sustainable in law?
2. Whether the lower Court was not right when it considered the Respondent’s issue one challenging the substantive jurisdiction of the trial Court and determined the issue in the Respondent’s favour, by holding that the trial Court lacked the substantive jurisdiction to entertain the appeal?
3. Whether the order of the lower Court striking out the Appellants’ suit was not the proper order to make having found that the trial Court lacked the substantive jurisdiction to entertain the suit?

The Respondent equally filed a Motion on Notice dated 20th January, 2020 challenging Grounds 4, 5, 6, 10, 11, 12 and 13 of the Appellants’ Amended Notice of Appeal, and prayed this Court for the following reliefs: